Civil rights issues today 189move closer to equality of outcomes by issuing an executive order requiring all federal
agencies and government contractors to submit written proposals to provide an
equal opportunity for employment of blacks, women, Asian Americans, and Native
Americans within various job categories and to outline programs to achieve those
goals. The policy was expanded under President Nixon, and throughout the 1970s
and 1980s affirmative action programs grew in the private sector, higher education,
and government contracting. Through such programs, employers and universities
gave special opportunities to minorities and women, either to make up for past
discrimination or to pursue the general goals of diversity.
Affirmative action takes many forms. The most passive type involves extra effort
to recruit women and minorities for employment or college admission by placing ads
in newspapers and magazines, visiting inner-city schools, or sending out targeted
mailings. A more active form involves including race or gender as a “plus factor” in
admissions or hiring decisions. That is, from a pool of qualified candidates a minority
applicant may receive an advantage over white applicants. Women generally do not
receive special consideration in admissions decisions, but gender may be a “plus
factor” in some employment decisions, especially in professions in which women
are underrepresented, such as engineering, architecture, the building trades, and
computer programming. (In fact, many selective schools have been quietly applying
affirmative action for men because more highly qualified women apply than men.) The
strongest form of affirmative action is the use of quotas—strict numerical targets to
hire or admit a specific number of applicants from underrepresented groups.
Affirmative action has been a controversial policy. Polls indicate that minorities
are much more supportive of the practice than whites are. Many whites view it as
“preferential treatment” and “reverse discrimination.” Two-thirds of whites support
affirmative action in general terms to “increase the number of black and minority
students on college campuses,” but when asked specifically about race-based
admissions or merit-based admissions, only 22 percent said that college admissions
should “take race/ethnicity into account” while 76 percent said that admissions should
be based “solely on merit” (the comparable numbers for black respondents were 44
percent and 50 percent).^101 This backlash has spilled over into state politics. California
passed Proposition 209 in 1996, which banned the consideration of “race, sex, color,
ethnicity or national origin” in public employment, public education, or public
contracting.^102 Nine other states have similar laws.
The Supreme Court has helped define the boundaries of this policy debate. The
earliest cases concerning affirmative action in employment upheld preferential
treatment and rigid quotas when the policies were necessary to make up for past
discrimination. The cases involved a worker training program that set aside 50 percent
of the positions for blacks, a labor union that was required to hire enough minorities to
get its nonwhite membership to 29.23 percent, and a state police force that was required
to promote one black officer for every white even if there was a smaller pool of blacks
who were eligible for promotion.^103 In each instance, there had been a previous pattern
of discrimination and exclusion.
The Court moved in a more color-blind direction in an important reverse-
discrimination employment case in 2009. In that case, 17 white firefighters and 1 Latino
firefighter sued the city of New Haven, Connecticut, for throwing out the results of a test
that would have been used to promote them. The city tried to ignore the results of the
test because no African-American firefighters would have qualified for promotion and
the city feared a “disparate impact” lawsuit. However, the Court ruled that the exam
did appear to be “job related and consistent with business necessity” (as required by
Section VII of the Civil Rights Act) and that unless the city could provide a “strong basis
in evidence” that it would have been sued, it had to consider the results of the exam.^104Full_06_APT_64431_ch05_148-197.indd 189 16/11/18 1:31 PM